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22.02.2017

UK plans law that could mean 14 years in jail for leakers

by Jane Whyatt

Britain’s Law Commission proposes a new law that could lead to long jail terms for leakers, journalists and whistleblowers accused of endangering national security. 

Espionage Act UK_900X600 Proposed UK law could also set a dangerous precedent in wider Europe regarding government secrets and leakers. Photo: public domain

They also propose to scrap the defence that a publication is in the public interest, and to exclude the press and public from trials.

Investigative journalist Duncan Campbell spotted the tough new restrictions and alerted the media freedom community with an exclusive article in The Register:

"The British government has received recommendations for a 'future-proofed' new Espionage Act that would put leaking and whistleblowing in the same category as spying for foreign powers. That threatens leakers and journalists with the same extended jail sentences as foreign agents. Sentences would apply even if – like Edward Snowden or Chelsea Manning – the leaker was not British, or in Britain, or was intent on acting in the public interest.“

Proposed new ideas at a glance

  • Sentences of up to 14 years in jail
  • No public interest defence
  • Press and public excluded from trials
  • Applies to foreign journalists, whistleblowers and embassy staff, too - not only UK citizens

Campbell himself was prosecuted under the existing official secrets legislation in the 1970s with John Berry and Crispin Aubrey, in what became a test case known as the "ABC trial". He was given a conditional discharge.

When he revealed widespread criticism of the planned new law amongst NGOs, the commissioners opened a public consultation. It lists a number of conclusions or recommendations, and invites individuals and organisations to give their views on them before 3 April 2017.

"A very serious threat to freedom of expression"

ECPMF’s Legal Affairs Committee issued this statement:

“While the Law Commission's report is obviously carefully researched, it seems to adopt, with regard to leaks of official data, a very one-sided approach. On the face of it, its proposals appear to threaten journalists and whistleblowers with much more severe criminal sanctions than are currently available. While it sets out no maximum recommended sentence, the only example it gives is that of Canada, where the maximum sentence is 14 years. Moreover, worryingly, it combines this threat of severe criminal sanctions with a proposal not only to remove the test of requiring any prosecution to prove damage – replacing this with a much lower standard of 'reasonable belief' that conduct 'might prejudice national security' (which is not to be defined) – but also with a proposal for what appears to be effectively a new strict liability offence of receiving or possessing official information. Put together, these proposals appear to pose a very dangerous threat to freedom of expression in the UK."

In addition to stiffer sentences, there are also moves to make it easier for the Crown (government) to prove that the law has been broken, and to ignore the long-held principle that prosecuting those who reveal official secrets will sometimes prove more damaging than the revelations themselves, because it will result in far greater publicity when brought to court.

And they propose that people who reveal official secrets may be tried in secret courts, with members of the public excluded (this includes journalists).

The ECPMF and its partners will continue following the proposed law's developments closely.

Reactions from the media freedom community

The proposal has already sparked outrage. ECPMF Chair Henrik Kaufholz calls for action:

 

"Of course you can question some leaks to the media. Whistleblowers have different motives. But if you take a look at the scandals following leaked documents published as Offshore Leaks, Panama Papers and Penelopegate (France), it’s obvious that whistleblowing is most often in the public interest. Only thanks to brave and independent minded individuals the world has learned of fraud, tax circus and governments breaking their own laws in secret. The ECPMF will therefore fight for the rights of people who discover serious irregularities to 'blow the whistle.'"

 

"A culture of fear" – Centre for Investigative Journalism

 

At London’s Centre for Investigative Journalism (an ECPMF organisational member), CIJ Director Matt Kennard comments: "The proposals would undermine democracy, create a culture of fear that would benefit unaccountable power, and make Britain's institutions much more opaque and therefore prone to corruption."

 

"It is appalling" – Paul Lashmar

 

Dr. Paul Lashmar is an investigative journalist and senior lecturer in journalism at the University of Sussex: "I've been looking closely at the new Official Secrets Act and it is appalling. We have the most authoritarian government of my lifetime."

 

"Frightening and unthinkable" – Index on Censorship

 

Index on Censorship (ECPMF member) has posted an alert on the Mapping Media Freedom monitor.  And IoC’s Chief Executive Jodie Ginsberg comments: "The proposed changes are frightening. It is unthinkable that whistleblowers and those to whom they reveal their information should face jail for leaking and receiving information that is in the public interest."

 

"A further attack on press freedom"- NUJ

 

For Michelle Stanistreet, General Secretary of the National Union of Journalists, these recommendations from the Law Commission are a further attack, following the controversial DRIPA law of 2014 on press freedom. Stanistreet makes it clear that the union will resist the proposals, in a statement on the NUJ website: "This union is deeply concerned at yet another attempt by the UK government to curtail the media. ...We have plenty of evidence that some police forces routinely used the Regulation of Investigatory Powers Act to get their hands on journalists' records without their knowledge."



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